Obama Defends Habeas Corpus for Suspected Terrorists

At a campaign rally Monday night, Sen. Barack Obama explained his views on why we need habeas corpus for everyone, even those suspected of terrorism:

"Habeas corpus ... is the foundation of Anglo-American law, which says very simply, if the government grabs you, then you have the right to at least ask, `Why was I grabbed?' and say, `Maybe, you've got the wrong person.'

"The reason we have that safeguard is we don't always have the right person. We don't always catch the right person. "We may think this is Muhammad the terrorist. It might be Muhammad the cab driver. You may think it's Barack the bomb-thrower. But it might be Barack, the guy running for president."

As to Gov. Sarah Palin's "reading their rights" slam of him during her acceptance speech, he responded: [More...]

"First of all, you don't even get to read them their rights until you catch 'em," Obama said to a roar of applause. "They should spend more time trying to catch Osama bin Laden, and we should worry about the next steps later."

I would just add that even if we have the right guy, we still need habeas so detainees can challenge the conditions of their confinement, including, but not limited to torture.

< Palin 's Per Diem Issue: Lived at Home, Billed the State | No Hillary As VP Has Financial Consequences For Obama >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    Bad dream (5.00 / 1) (#5)
    by jerry on Tue Sep 09, 2008 at 01:30:51 AM EST
    It's 2008 and we're arguing about habeas.  I gotta find my way out of this dream.  Last thing I remember I was eating a really heavy meal....

    I dont get it (5.00 / 2) (#6)
    by AlSmith on Tue Sep 09, 2008 at 01:34:37 AM EST

    "Obama said his position has "always been clear: If you've got a terrorist, take 'em out, take 'em out. Anybody who was involved in 9/11, take 'em out.""

    How do you "take 'em out"- presumably a missile or predator strike- and read them their rights?

    a fair question. (5.00 / 1) (#8)
    by cpinva on Tue Sep 09, 2008 at 01:50:06 AM EST
    How do you "take 'em out"- presumably a missile or predator strike- and read them their rights?

    i believe you tape the little card, the ones that cops hand out, to the side of the missile. granted, they'd have to read very quickly, but there you go, "miranda" reading accomplished!

    if the missile is targeted properly, this becomes something of a moot point.


    Dr. Strangelove. (5.00 / 1) (#9)
    by oculus on Tue Sep 09, 2008 at 02:01:14 AM EST
    I think he was making a distinction (5.00 / 5) (#11)
    by Jeralyn on Tue Sep 09, 2008 at 02:28:26 AM EST
    between the ones you kill on site and the ones you capture. Suspects you capture abroad don't get their rights read to them. Those you capture here do.

    Habeas doesn't have anything to do with Miranda Rights being read. Habeas is a challenge to being held in custody. Literally , it's a writ that directs the custodian to "bring forth the body" .


    Thank you (5.00 / 1) (#29)
    by Claw on Tue Sep 09, 2008 at 07:48:04 AM EST
    Please learn the difference between Habeas and Miranda.  This is a liberal-LEGAL website and it's annoying to see habeas corpus and Miranda confused every time either is mentioned.  It's like someone frequenting a website devoted to precise grammar and constantly confusing who and whom.

    NB: The reason this is so annoying is not that I expect every commenter to have a perfect understanding of Habeas/Miranda; it's that the difference is explained every single time the subject comes up.    
    Sorry to be prickly.


    Obama voted for the latest FISA bill (none / 0) (#17)
    by ding7777 on Tue Sep 09, 2008 at 06:41:47 AM EST
    Did it restore Habeas Corpus?

    It has nothing to do (5.00 / 1) (#19)
    by flyerhawk on Tue Sep 09, 2008 at 06:49:26 AM EST
    with Habeas Corpus.

    But your snark is duly noted.


    still not clear to me (none / 0) (#38)
    by AlSmith on Tue Sep 09, 2008 at 08:57:02 AM EST

    Lets suppose you have "Barack the Bomb thrower" who was 'involved' in 9/11 (you can define involvement) located in a foreign country. You have a sniper team that has him in their sights.

    I understand that today there is some military process that goes on before they they decided it is a good target and radio the sniper permission to shoot.

    How is Obama proposing this situation change? I am guessing that proof of identify and 'involvement' was less than what would be required in a civilian courtroom procedure. How is Habeas corpus to be inserted into this process?  In this venue there is no way for Barack the Dusty Turban Guy to prove that he isnt Barack the Bomb Thrower or to examine any informants.

    This is a situation where "take 'em out" and "Habeas corpus is the foundation of Anglo-American law" are popular catch phrases by themselves but I think we need more information about how they would be reconciled.


    Obama is not (none / 0) (#39)
    by Steve M on Tue Sep 09, 2008 at 08:59:00 AM EST
    proposing that this situation change.

    Unless and until someone is actually taken into custody, none of this is relevant.


    Nice one (none / 0) (#44)
    by Socraticsilence on Tue Sep 09, 2008 at 09:15:53 AM EST
    Nice usiing Barack's name there, I think his point was if Sarah P. goes and bombs an abortion clinic then she gets read her rights and not tortured.

    for those of you who don't get it, (none / 0) (#46)
    by cpinva on Tue Sep 09, 2008 at 09:19:24 AM EST
    this is what we commonly refer to as "facetiousness".

    clearly not meant to be taken seriously, it's done with a straight face. it does, however, require a bit of thought, on the listener/reader's part, to pick up on it.

    and yes, i do know the difference between habeas and miranda.


    not at all (none / 0) (#55)
    by AlSmith on Tue Sep 09, 2008 at 09:44:00 AM EST

    A good 50% of my life I am being facetiousness. In this case I am not.

    I know Obama was speaking off the cuff, but really can anyone read that article and tell what Obama is actually proposing?

    Based on this:
    "First of all, you don't even get to read them their rights until you catch 'em," Obama said to a roar of applause. "They should spend more time trying to catch Osama bin Laden, and we should worry about the next steps later."

    does Obama "take 'em out" or take him into custody and have him provide a legal defense?

    I am not talking about what is a good policy, or what would play well politically, but what permissible actions are.


    So you are agree that (none / 0) (#60)
    by fercryinoutloud on Tue Sep 09, 2008 at 11:16:28 AM EST
    those in Guantanamo who were captured abroad don't get their rights read to them.

    I think Obama just might make a distinction (5.00 / 1) (#27)
    by Molly Bloom on Tue Sep 09, 2008 at 07:30:51 AM EST
    between police capturing a terrorist suspect in the US versus "taking them out" by attacking a Bin Ladin encampment in Waziristan.

    All things considered, I expect Hillary would make such a distinction as well. There is, of course, the possibility of making a fatal mistake in attacking a "suspected Bin Laden camp." But that is a nuance most people are not going to get or care about.
    There is an old saying, hard cases make bad law.

    Other the other hand,  some Republicans think the executive has the right to be the judge, jury and executioner whether with a captured terrorist suspect in the US or in some foreign land.

    Most Americans would probably see the difference in the two positions.


    I think you're a 100% correct and I will go (none / 0) (#33)
    by Matt in Chicago on Tue Sep 09, 2008 at 08:30:20 AM EST
    one step farther and say that I believe people already know the difference between civilian and military prisoners and that this attempt to lump them all together is why our argument has been failing (it works well in blogs but I don't see regular Americans up in arms over this "problem").  It winds up making us look like we are sympathetic to terrorist and once again highlights a complete lack of understanding of the role and duties of the military (i.e., not law enforcement).

    Obama must love starring in McCain's Ads (5.00 / 1) (#12)
    by SomewhatChunky on Tue Sep 09, 2008 at 02:30:04 AM EST
    Not satisfied with co-starring with  Charlton Heston in the McCain ad known as "The One" Obama today auditioned for future Republican attack ads to be featured later this fall.

    Will we see the clip about "Barrack the Bomb Thrower?"

    Or will be an image of that old Vietnam flyboy promising to hunt down those who threaten our safety...  which slowly fades into a clip of Barrack Obama,  aspiring commander-in-chief promising to protect the rights of terrorists....

    I predict this ad will play to huge ratings in the crucial blue-collar swing states.  They love terrorists there.

    This doesn't seem to be a winning approach to me.  BO may be right in principle,  but terrorists have a very small support group in the US.  And they don't vote.  Do the "morally good stuff" after you win.  Maybe try to win first?  Who's coming up with this stuff?

    Absolutely (5.00 / 1) (#14)
    by JAB on Tue Sep 09, 2008 at 04:36:50 AM EST
    I agree with Obama 100% on this, but why, oh why, does he say stuff like this?  I think he thinks it's makes him "one of the little people" - a little self-deprecating humor - but why write the commercials for the Republicans?

    This would make (5.00 / 2) (#25)
    by lilburro on Tue Sep 09, 2008 at 07:28:53 AM EST
    a really stupid commercial.  It's not a gaffe.  It was just something he said.  There is no logical conclusion to make, nothing really to say about that aspect of his defense of habeas corpus.

    Your disrespect for our civil liberties is showing...


    Personally.... (5.00 / 1) (#48)
    by kdog on Tue Sep 09, 2008 at 09:24:42 AM EST
    I want the candidates to tell the truth, represent their views and ideas accurately, and come what may.

    I do not want the candidates to lie, spin, and deceive in order to get elected.  Because once elected, they seem to find it difficult to stop lying, spinning, and deceiving.  Dancing with who brought ya, so to speak.

    Better to lose the right way than to win the wrong way.  Kudos to Obama for taking a potentially unpopular stand in defense of a most cherished right, or a stand that can be spun into something unpopular.  

    As an aside, how sad is it that defending  habeaus corpus can in anyway be considered a bad move?  Strange days, strange days.


    What? (none / 0) (#49)
    by Socraticsilence on Tue Sep 09, 2008 at 09:26:00 AM EST
    So let me see if I get this right, it was wrong for Barrack to sell out on FISA, but its also wrong for Barrack to defend the rights of terrorist, is there something that Obama could do that's right?

    Oh come on people (5.00 / 1) (#15)
    by wasabi on Tue Sep 09, 2008 at 05:12:55 AM EST
    This has absolutely nothing to do with reading someone their rights.  

    I think the American people can get the concept that the government should be able to answer the question, "Why was I grabbed?".  

    It's in a totally different league than the ususal canard of "I don't mind them snooping on me because I have nothing to hide."  Everyone at some point in their life gets accused of something they haven't don't and most people want to know "where's your proof?"  It's very basic.

    Obama was clear and honest (5.00 / 2) (#18)
    by Rover1 on Tue Sep 09, 2008 at 06:46:53 AM EST
    Once again this blog does nothing but tear him down and throw support to McCain.

    I so totally agree with you on this. (5.00 / 4) (#21)
    by steviez314 on Tue Sep 09, 2008 at 06:54:33 AM EST
    Here Jeralyn makes a point of highlighting the Democratic candidate standing up for habeus corpus rights, and yet almost every comment is a dis.

    "Oh no, why bring it up.  How could he say those exact words, it'll be a TV ad.  People don't care about those rights."

    You'd expect to get at least a few entries about how the Republicans have totally trashed the Constitution and how at least Obama is pushing back here.  Nope.  To so many people here, it's always good news for McCain.


    Cheer Up (none / 0) (#42)
    by wystler on Tue Sep 09, 2008 at 09:12:13 AM EST
    The dust will settle. Eventually. Readers' comments will return to normalcy here once this historic election is, well, history, and we can again see civil liberties treated with deserved importance.

    Meanwhile ...


    The argument for preservation (5.00 / 4) (#22)
    by Anne on Tue Sep 09, 2008 at 07:16:25 AM EST
    of habeas rights is infinitely more compelling to Americans when you make then realize that once you start chipping away at it, parsing who is and is not entitled to it, looking at issues of "public safety" and reduction of crime, the door has been opened to dangerous abuse.

    What I don't understand is how someone who can espouse the application of habeas rights to detainees decided he should vote for some of the worst legislation that signficantly erodes the privacy rights of American citizens, and also opens the door to dangerous abuse, with no apparent way to defend ourselves against it.

    There is no way for me to reconcile those two positions, and for the life of me, I do not understand how Obama rationalizes it.

    I dunno (5.00 / 3) (#24)
    by Steve M on Tue Sep 09, 2008 at 07:27:11 AM EST
    Not to dissent from the commentariat, but it seems to me that we need more, not fewer, Democrats who are willing to defend this sort of principle in common-sense terms.

    Maybe the "why would he leave himself open to GOP demagoguery during a campaign" people need to go in a room with the "how could he support FISA" people and come up with a single objection, because those two don't really work well together.

    Exactly (none / 0) (#51)
    by daring grace on Tue Sep 09, 2008 at 09:29:49 AM EST
    This used to be one of the things that the Democratic Party stood for and the Republicans were, at best, indifferent to--and that the country as a whole was behind.

    It's time to get a Dem in the WH and put more commanding numbers of them in Congress to start the redemptive walk of our gov't back into the civil liberties/constitutional protections light.

    This election has to be about ending this long national descent into tyranny.


    "Barack the bomb thrower"??? (4.00 / 3) (#3)
    by haner on Tue Sep 09, 2008 at 01:13:38 AM EST
    You've got to be kidding me...

    Quite bizarre. (5.00 / 1) (#7)
    by oculus on Tue Sep 09, 2008 at 01:46:54 AM EST
    Very bizarre (5.00 / 1) (#10)
    by Prabhata on Tue Sep 09, 2008 at 02:09:55 AM EST
    only if you'v never... (5.00 / 5) (#16)
    by Dadler on Tue Sep 09, 2008 at 06:41:39 AM EST
    ...had the color of your skin or the sound of your name attract immediate negative attention.  When was the last time simply being who you are got you followed by security from the moment you entered a store?  Or was the reason you could not rent the apartment you wanted to rent, again and again?  Or was the reason a cop pulled you over and hassled you?  Or why people call you a secret Muslim for no other reason than to try to plant in voters minds that you are really a terrorist in disuise?  Try really hard to imagine how these things might make you different from who you are?  

    Some things get said simply because they come out of the mouth of a unique person, with a unique history, and their own unique set of issues.

    But I suppose you have none and would function perfectly under that kind of microscope?

    He's different.  Big phucking deal.


    I'm Asian (none / 0) (#34)
    by haner on Tue Sep 09, 2008 at 08:31:54 AM EST
    This "unique", "racism" argument is really starting to ring hollow to me.  I work in a high tech company with sensitive information.  While I may feel that there are coworkers who may think I might be a compromised because of the color of my skin (due to jealousy or ulterior motives), I'm also not stupid enough to give ammunition to my enemies by joking around publicly with phrases like "I'm a spy."  This is common sense.  Race has nothing to do with it.

    A bomb thrower is a murderer.  You simply don't try to draw your name to it, jokingly or not.  It would be like Bill Clinton saying "Bill the rapist" to try to debunk the smear that he's a rapist.  Would that go over well?


    Not sure what part rings hollow (none / 0) (#61)
    by nalo on Tue Sep 09, 2008 at 11:53:14 AM EST
    The McCain camp says: "It's the journey of an upright and honorable man - the kind of fellow whose name you will find on war memorials in small towns across this country..."  When Obama defends himself...McCain freaks out and gets the media to accuse Obama of playing the "race card".

    John McCain consistently makes jokes about his age, and I've never once heard him accused of being ageist.  I hope you find this objectionable and "hollow" as well.

    Anyway, Obama's not "debunking a smear" or "giving ammunition" .... He's defending himself, and in my opinion, he did it cleverly, with strength and humor.


    Women (none / 0) (#37)
    by joanneleon on Tue Sep 09, 2008 at 08:55:04 AM EST
    have a lot of experience with being prejudged too.  So while it's not exactly the same, and we don't tend to get pegged as threats, we do get prejudged in other ways.  

    None of it is fair though, and I do understand your point, and admire you for reminding people.  I just think it's a good idea to remember that there are many different kinds of people who are prejudged unfairly.  Even white men, for instance, immediately get put down a lot in the left blogosphere, and are often painted as bigoted, privileged, selfish, and such, when that is not true of most of the white men I know.

    It's such a shame that we put such emphasis on what's different about each other, instead of focusing on what we have in common.  Ugh.  It's just so stupid and self defeating.


    quite fitting (none / 0) (#59)
    by Jlvngstn on Tue Sep 09, 2008 at 10:30:40 AM EST
    since he was taught in a madras (sp) and the questions surrounding his faith.  There are many out there who still think he is a muslem. Not that there is anything wrong with being a muslim now is there....

    A Suggestion (none / 0) (#1)
    by kaleidescope on Tue Sep 09, 2008 at 01:07:41 AM EST
    "People accused of being terrorists" rather than "accused terrorists".  I know, kinda hard to fit in a title, but still.

    how about (5.00 / 1) (#2)
    by Jeralyn on Tue Sep 09, 2008 at 01:08:59 AM EST
    suspected terrorists?

    That Would Work n/t (none / 0) (#36)
    by kaleidescope on Tue Sep 09, 2008 at 08:51:45 AM EST
    perhaps ... (none / 0) (#43)
    by wystler on Tue Sep 09, 2008 at 09:13:58 AM EST
    ... alleged terrorists

    Or even... (none / 0) (#4)
    by EL seattle on Tue Sep 09, 2008 at 01:14:15 AM EST
    ... "People accused of maybe knowing someone else who's accused of maybe being a terrorist."

    I guess it took them a few days after Palin's speech to come up with this, but at least it's a start, I guess.

    Whoever it was..... (none / 0) (#13)
    by NYShooter on Tue Sep 09, 2008 at 02:36:55 AM EST
    .....who said something like, "if put to a referendum, the American public would defeat The Bill Of Rights" was right on. The majority (or at least a huge plurality) of Americans dont't know  Habeas Corpus from Dunkin Donuts. They know McCain and Palin want to kill them Terr-ists, Obama wants to lecture on jurisprudence.
    The Dems still don't get it; the R's are winning the war of the soundbites.
    "Habeas Corpus?" "What's that? another get-out-of-jail card for the terrorists who want to cut off your daughter's head, and kill your wife, mother and sister? Go back to Hah-vahd, you effeminate, pinko, towel head, sissies!"

    Oh Lord, we're in big trouble.

    One word: (none / 0) (#20)
    by lambert on Tue Sep 09, 2008 at 06:49:28 AM EST

    Habeas corpus is just a latin phrase without the rule of law. How does giving retroactive immunity to the telcos square with upholding the rule of law? In my book, it doesn't.

    FISA is a non-sequitur to this. (5.00 / 1) (#23)
    by lizpolaris on Tue Sep 09, 2008 at 07:24:37 AM EST
    Obama voted YEA on the bill to restore habeus corpus:
    http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=110&sessio n=1&vote=00340

    In 2006, Obama voted against the bill which stripped habeus corpus from us:
    http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=109&sessio n=2&vote=00259

    This one is legitimately Obama's issue, as he has spoken out on it in the past and voted on it consistently:


    The 3rd icon from the right (5.00 / 1) (#28)
    by Molly Bloom on Tue Sep 09, 2008 at 07:45:27 AM EST
    When you start typing in the comment box, there is a series of icons above the box, B, I, u etc.

    The one that looks like a link in a chain, (4th from the left, 3rd from the right) is for hyperlinks. Highlight with your cursor the word or phrase you want to use for a hyper link, click on that icon. A box will appear. Paste the url in the little box. Click Ok.

    The other icons work similarly. At the bottom left is a button named preview. Click on it to see if your comment looks like you want it to and that the hyperlinks are set up correctly.


    Thanks, hadn't noticed those. (5.00 / 1) (#30)
    by lizpolaris on Tue Sep 09, 2008 at 07:50:31 AM EST
    Will make for shorter comments in the future.

    used to be posting urls (none / 0) (#31)
    by Molly Bloom on Tue Sep 09, 2008 at 07:53:42 AM EST
    got your comments deleted for skewing the site. Not sure if that is the case any more or if the number of comments makes it harder to enforce the rule. But if it is still the rule, its possible your comments could get deleted.

    Ah, yes... (none / 0) (#40)
    by lambert on Tue Sep 09, 2008 at 09:06:34 AM EST
    I remember when the Obama supporters discovered the phrase "non sequitur." Suddenly, it was all over Kos like a kudzu. Memories...

    Let me simplify it for you:

    If there is no rule of law, habeas corpus does not matter.

    In voting to grant the telcos retroactive immunity, Obama voted against the rule of law.

    Therefore, a verbal expression of support for habeas corpus is undermined by Obama's actions.

    And Obama did that in 2008, so your links from 2006 and 2007 are obsolete.

    Smarter Obama supporters, please.


    I do not agree (5.00 / 2) (#54)
    by Steve M on Tue Sep 09, 2008 at 09:38:28 AM EST
    that once a politician does the wrong thing on one occasion, he is forever disabled from doing the right thing.

    This is the kind of argument that leads us into the "purity troll" mode where the liberal blogs have wandered for years.  Obama voted for FISA - so he's not one of us, he's dead to me!  Biden voted for the bankruptcy bill - so he's not one of us, he's dead to me!  Clinton voted for the war - so she's not one of us, she's dead to me!  And so it goes.  You can spend your whole life waiting for the next Paul Wellstone, only to be reminded that even Paul Wellstone voted for DOMA.

    Obama cast a terrible vote on FISA, but if your attitude is that that wrecks every other issue that he might get right, then you're going to end up rejecting every politician in the Democratic Party by the end of the process.  I don't think that's productive and it leaves you looking no better than the mirror image of Daily Kos.


    Although your comment was not (none / 0) (#62)
    by oculus on Tue Sep 09, 2008 at 12:23:28 PM EST
    addressed to me, I must say that last sentence is a low blow indeed.

    Which, in fact, I did not say (none / 0) (#64)
    by lambert on Tue Sep 09, 2008 at 06:32:01 PM EST
    I didn't say "Obama is dead to me."

    All I said was that if Obama votes against the rule of law, then his words on habeas corpus don't matter that much -- no matter how well phrased they are, and they are well phrased.

    It's not about "right" and "wrong," it's about the difference between words and actions.

    I also find it fascinating, Steve, that you admit Obama -- remember the "Professor of Constitutional Law" talking point from Kos? Memories... -- voted against the rule of law, but you classify that as "purity troll" mode. If this be concern for purity, than what is your definition of impure?


    thank you (none / 0) (#45)
    by wystler on Tue Sep 09, 2008 at 09:16:22 AM EST
    ... for you perfect example of a non sequitur

    another example (none / 0) (#47)
    by wystler on Tue Sep 09, 2008 at 09:21:21 AM EST
    LOL Lambert (none / 0) (#52)
    by lizpolaris on Tue Sep 09, 2008 at 09:31:04 AM EST
    Even on this site, I'm easily identifiable as a PUMA.  Obama's not my guy.

    Habeus corpus relates to the right of the accused to know the charges against them.  That is, a person cannot be held indefinitely by the king without knowing why and has access to a court to plead their case.  This became law in 1215.  And was removed from US law in 2006, much to our shame.  Obama disagreed and wants to return us from out of the Dark Ages back to at least the Middle Ages, in terms of the rule of law.

    FISA is another kettle of fish (since non sequitur is verboten now).  With FISA, we have the amazing new type of law which can wipe out a corporation's past sins and prevent them from being prosecuted for any FUTURE sins they might also commit.

    Habeaus corpus is about the rights of an individual; FISA is about the law which apply to a corporation.

    You're quite right that the situation as it stands now, makes the US not a place which functions under the rule of law in any reasonable sense of the phrase.


    At least, that's the telcom immunity part of it. (none / 0) (#56)
    by lizpolaris on Tue Sep 09, 2008 at 09:47:29 AM EST
    The wiretapping part of it...well, I suppose the government is reading our emails even now.

    No rule of law, no habeas corpus (none / 0) (#63)
    by lambert on Tue Sep 09, 2008 at 06:18:58 PM EST
    It really is that simple.

    On habeas corpus we have words

    On the rule of law, we have a vote.


    Reading these statements from Obama (none / 0) (#26)
    by BrianJ on Tue Sep 09, 2008 at 07:29:37 AM EST
    Makes this almost the first time that I see what so many saw in him.  Clear, concise, and to the point when defending rights that all of us should possess.

    More, please.

    Restore Habeus Corpus for prisoners (none / 0) (#32)
    by Matt in Chicago on Tue Sep 09, 2008 at 08:25:50 AM EST
    in Military custody?  This is a red herring.  These prisoners never had a right to HC. This right was recently created... and Obama knows that.  He did teach Con Law after all.  Previously (in WWII) prisoners taken on the battlefield were subject to military tribunal convened virtually on the battlefield to determine if they had picked up someone who was fighting or someone who happened to be in the wrong place at the wrong time.  Again, as a Con Law professor, Obama knows (or should know) this.

    As for ensuring HC for prisoners in civil custody, Obama is 100% that it is a bedrock of American society.  And ANY attempt to limit this should be fought to our last breath.

    But blurring the lines between the two just erodes the argument we're trying to make... and allows us to be painted as being sympathetic to suspected terrorists.  And let's face it, if the poll numbers are any indication (and they are) the voting public is not buying our less than honest argument.

    In my opinion, this is another (and continuing) unforced error.

    Well (5.00 / 1) (#35)
    by Steve M on Tue Sep 09, 2008 at 08:38:39 AM EST
    the difference with WWII is not that a new right "has been created," but that the government is treating detainees in a different manner than it did during WWII.

    There is absolutely nothing which prevents the US military from continuing to convene on-the-spot tribunals to determine the fate of prisoners.  Nor is there any right to habeas corpus for detainees who are held in overseas facilities in Iraq or Afghanistan.

    But when we transfer detainees (some of whom weren't even battlefield captures, but were simply handed over to us) to domestic facilities without any sort of tribunal proceeding, to be held indefinitely without trial until "the war on terror" ends, of course they ought to be entitled at some point to question their confinement.  This is not a "new right"; our government has never before claimed the right to hold detainees under circumstances such as these.


    That is only partially true. (none / 0) (#41)
    by Matt in Chicago on Tue Sep 09, 2008 at 09:08:46 AM EST
    These prisoners are still in military custody... which means that they never had Habeus Corpus rights until the recent SC decision.  How can you say this is not a new right?  You just acknowledge that this situation has never occurred before... so prisoners never has the the right to challenge their military captivity before...  But the fact that they have this right now (when they didn't before) mean that it isn't new?  Honestly, I am confused.

    Or, are you attempting to argue (as the Supreme Court did) that Guantanamo is domestic facility?  But it is domestic in the sense that it is on foreign soil within a country we do not share diplomatic relations...


    Well (5.00 / 1) (#50)
    by Steve M on Tue Sep 09, 2008 at 09:27:48 AM EST
    the detainees only get those rights if the military decides to transfer them to Guantanamo for indefinite detention.  As I explained above, the military is free to treat them just as it did in WWII and other conflicts, nothing has changed about that.

    I think the Supreme Court's decision explaining why Guantanamo is more akin to domestic confinement as opposed to military confinement on or near the battlefield was very persuasive.  Again, the Supreme Court often has to apply long-standing legal principles to new situations.  That does not mean that it creates rights out of thin air by so doing.

    I think it is basic common sense that when we are talking about imprisoning people for decades, we take some basic steps to sort out which of them were legitimately captured while fighting against U.S. forces and which of them are people we simply hold by mistake.  The Executive Branch should have implemented appropriate procedures to accomplish this long before the Supreme Court felt compelled to step in.  Do whatever you like with the terrorists, but don't imprison some innocent shopkeeper for his natural lifespan because we didn't feel compelled to sort out whether he was a shopkeeper or a terrorist.  That shopkeeper has kids who would like to see their daddy, and none of this is his fault.


    Interesting (none / 0) (#58)
    by Matt in Chicago on Tue Sep 09, 2008 at 10:24:01 AM EST
    I see your point, I think we are just working from some different underlying basic assumptions.  In my case, I think that the actors in the conflict have significantly changed from WWII.  By this I mean we are no longer dealing with state actors rather individuals associated with a movement.

    I completely agree with the your arguments in the last paragraph, but I would say that the military tribunals that were attempted WERE the modern equivalent of the WWII battlefield tribunals... but that  civilian court interfered with... in other words, it seems to me, that the "the military is [NOT] free to treat them just as it did in WWII and other conflicts"  I will say, that again you are correct these tribunal should have happened much sooner.

    I tend to think that both side of this issue have screwed up royally.  In my opinion, these prisoners do not fall into any existing category of detainee (in other words they don't fall squarely within the Geneva Convention) and we should have fixed that (at least within the US) as quickly as possible.

    I think we will have to agree to disagree with the SC decision, because I think it would have been correct if it had covered all of the US bases or none of them... not just the one that they don't like.

    BTW thanks Steve, this was interesting!


    yes, they are still in military custody, (none / 0) (#53)
    by cpinva on Tue Sep 09, 2008 at 09:31:38 AM EST
    in clear violation of the geneva conventions, of which we are a signatory to. they require that, in cases where there is a question of a prisoner's actual status, that a competent tribunal be convened, to determine that individual's correct status.

    so far, that's not been done. in fact, our dear leader basically has given the finger to both the geneva conventions and international law.

    as well, congress hasn't declared war lately, so technically, we aren't at war with anyone, we just went around invading countries.

    as a constitutional reminder to you matt, presidents don't get to unilaterally declare war on anyone.


    cpinva, thanks for the condescention (none / 0) (#57)
    by Matt in Chicago on Tue Sep 09, 2008 at 10:15:08 AM EST
    As a lawyer, I am already well aware of the Executive branches authority.  Congress did authorize the President to use force... I am not sure if you really want to find out if the courts are willing to interpret that as a modern equivalent of a declaration of war... this is the third time we have done so (Korea, vietnam and Iraq).

    As an ex-naval officer, I will say that the Geneva Conventions argument is without merit.  The GC primariliy addresses state actors such as those in a nations military or militia, civilians and to a lessor extent those carrying out espionage.

    In this situation, Steve is completely correct that these prisoners are different than those captured in WWII because they are NOT sponsored by a state... rather they are part of a movement.  Now if you choose to then assume they are civilians, that is your prerogative but I don't think it is correct.  They are definitely NOT soldiers as defined by the convention.  It wouldn't be unreasonable to assume they were spies or foreign agents under the convention... but I am almost positive you would object to that description.  I suggest you actually read the GC with an eye towards how signatory are allowed to treat spies or agents captured on the battlefield.